ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 12-954, DIVISION " J" . HONORABLE STEPHEN J. WINDHORST, JUDGE PRESIDING.
CONVICTIONS AFFIRMED; SENTENCE ON COUNT ONE AFFIRMED; SENTENCE ON COUNT TWO VACATED; REMANDED FOR RE-SENTENCING ON COUNT TWO.
PAUL D. CONNICK, JR., DISTRICT ATTORNEY, Twenty-Fourth Judicial District, Parish of Jefferson, TERRY M. BOUDREAUX, ANNE M. WALLIS, RACHEL AFRICK, ASSISTANT DISTRICT ATTORNEYS, Gretna, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.
MARGARET S. SOLLARS, ATTORNEY AT LAW, Louisiana Appellate Project, Thibodaux, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.
Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Hans J. Liljeberg. WICKER, J., CONCURS WITH REASONS.
[14-671 La.App. 5 Cir. 2] Defendant appeals his convictions and sentences for simple burglary of an inhabited dwelling and illegal possession of stolen things valued at more than $500 but less than $1,500. For the following reasons, we affirm defendant's convictions and his multiple offender sentence on count one. We vacate defendant's sentence on count two and remand for re-sentencing.
On February 27, 2012, defendant, Kerry Martin, was charged by bill of information with simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2 (count one) and illegal possession of stolen things, valued at more than $500 but less than $1,500, in violation of La. R.S. 14:69 (count two). He initially pled not guilty. On May 7, 2012, defendant withdrew his not guilty plea and pled guilty as charged. Defendant was sentenced to ten years imprisonment at hard labor on each count, to run concurrently, with the first year of the sentence on [14-671 La.App. 5 Cir. 3] count one to be served without benefit of probation, parole, or suspension of sentence.
On that same date, the State filed a multiple offender bill of information alleging defendant to be a second felony offender. Defendant stipulated to the allegations of the multiple bill. Defendant's original sentence on count one was vacated, and he was resentenced, as a second felony offender, to ten years imprisonment at hard labor. The trial court also ordered the multiple offender sentence on count one to run concurrently with the sentence on count two and with a misdemeanor sentence in another case. Defendant sought and was granted an out-of-time appeal by the trial court.
Defendant pleaded guilty and did not proceed to trial. Therefore, the following facts were taken from the bill of information: On or about December 22, 2011, defendant committed simple burglary of the inhabited dwelling and structure located at 4717 Hessmer Street in Metairie, which was the home or place of abode of Conrad Frey. On that same date, defendant also intentionally possessed an Apple iPad, valued at over $500 but less than $1,500, belonging to ...